Part of an ongoing spat with Spark, telco entrepreneur Malcolm Dick alleges Spark made false statements intended to defeat the course of justice during a 2015 Commerce Commission merger application and that Spark employees misled the Commission. He failed in an attempt to have the High Court refer these complaints to the Law Society and the Commission.
The dust up between Spark and Mr Dick is playing out as part of ongoing litigation between Cayman Spectrum (NZ) and Spark. In that litigation, Cayman alleges Spark knowingly assisted Cayman director Boyd Craig in ripping off Cayman. Mr Dick is the controlling figure behind Cayman. He also has interests in another telco, Blue Reach.
Mr Dick alleges Spark lied to the Commerce Commission during a 2015 application when seeking to buy Woosh Wireless and Craig Wireless.
It is alleged Spark failed to tell the Commission in 2015 that Blue Reach intended to enter the retail market. Mr Dick claims documents Spark were required to disclose as part of the current Cayman Spectrum/Spark litigation make it clear that Spark was aware back in 2015 that Blue Reach was likely to become a market participant at retail level. The High Court was told that at the Commerce Commission hearing a Spark employee stated that Spark’s understanding was that Blue Reach intended to offer wholesale telco services only.
The wholesale market is a different ‘market’ to retail. Market concentration is a central issue in Commerce Commission deliberations.
Mr Dick applied to have the Cayman/Spark litigation documents handed over to both the Commerce Commission and the Law Society for disciplinary action against Spark and several named employees.
Blue Reach and Spark have a bruising backstory. In 2018, Blue Reach had a claim against Spark struck out. This concerned a Blue Reach allegation that Spark had misled the Commission. Justice Lang described the current 2023 case as another effort by Blue Reach to have Spark’s behaviour investigated.
Rules governing documents ordered to be handed over prior to a court hearing cannot be used for any collateral or ulterior motive, except in exceptional circumstances.
Blue Reach was making use of documents it had no right to access, Justice Lang ruled. Blue Reach is not party to the current Cayman Spectrum/Spark litigation. Through Cayman, Blue Reach opportunistically learnt of the documents’ existence simply by reason of Mr Dick’s holdings in both Blue Reach and Cayman.
Staff at both the Law Society and the Commerce Commission will be aware of Mr Dick’s complaints and have power to initiate their own investigation if warranted, Justice Lang said.
Cayman Spectrum (NZ) Ltd v. Spark NZ Trading Ltd – High Court (10.05.23)
23.064